An agreement to conclude a future purchase agreement is a common and proven way to secure an apartment in a new development. Sometimes, however, the buyer’s circumstances change so much that they cannot complete the purchase.
Terminating the agreement is not necessarily the only solution. The buyer may agree to transfer their rights and obligations to a new buyer.
When circumstances change
When buying an apartment in a new development, a lot can change between signing the agreement to conclude a future purchase agreement (Section 50a of the Civil Code) and concluding the purchase agreement after the building has been approved for use. The buyer may get a job in another city, the family may grow, or their financial situation may change.
A buyer who can no longer buy the apartment, or no longer wishes to, has more options than simply terminating the agreement. One of them is to find a successor who will step into the agreement in their place. The original buyer can thus recover what they have already paid. The new buyer gets an apartment in a project they are interested in, and the developer still has a buyer who will complete the agreement.
How the transfer works
The Civil Code does not contain specific rules on the transfer of an entire contract. In practice, two legal institutes are therefore combined:
- Assignment of rights (Section 524 et seq. of the Civil Code). The original buyer transfers their rights under the agreement to the new buyer, in particular the right to conclude the purchase agreement and the rights relating to the advance payments made. The assignment agreement must be in writing.
- Assumption of obligations (Section 531 of the Civil Code). The new buyer assumes the obligations of the original buyer, in particular the obligation to pay the remainder of the price and to conclude the purchase agreement.
This is most often dealt with in a single tripartite agreement between the original buyer, the new buyer and the developer, under which the new buyer steps into the agreement in its entirety. After the building is approved for use, the developer concludes the purchase agreement with the new buyer on the same terms as were agreed with the original buyer.
The developer’s role
The transfer cannot take place without the developer. Under the law, the assumption of obligations always requires the consent of the creditor, i.e. the developer. The developer also has a legitimate interest in knowing with whom it will conclude the purchase agreement. The developer’s consent cannot be taken for granted, as the developer may have a legitimate interest in choosing for itself with whom it wishes to conclude a purchase agreement on specific terms.
It is therefore nothing unusual if the developer requires a fee for allowing the transfer of rights and obligations under an agreement to conclude a future purchase agreement that has already been signed, or if it prohibits such a transfer altogether. A prohibition or restriction of assignment agreed in this way is binding (Section 525(2) of the Civil Code).
The first step is therefore always to look at your own agreement and ask the developer what its position on such an option is.
What the original and the new buyer should agree on
The relationship between the original buyer, the new buyer and the developer needs to be set out transparently, paying particular attention to:
- whether the transfer of rights and obligations is made for consideration. The consideration will usually correspond to the advance payments already made by the original buyer. It is advisable to have the amount of the advance payments confirmed by the developer;
- the new buyer’s financing. If the new buyer will finance the purchase with a loan, it is a good idea to agree in advance with the bank on the documents and the procedure required;
- the settlement of all obligations between the original buyer and the developer. The agreement should make it clear that, after the transfer, the original buyer no longer has any obligations towards the developer under the agreement, and likewise that the original buyer has no claims against the developer.
The new buyer steps into an existing agreement. Before signing, they must therefore become properly acquainted with its wording, including any amendments and annexes, just like any other buyer.
Tax implications
The assignment of rights under an agreement to conclude a future purchase agreement is not a sale of real estate. Therefore, the exemption of income from the sale of real estate under Section 9(1)(a) of Act No. 595/2003 Coll. on Income Tax does not apply to it. If the consideration for the assignment merely refunds the advance payments made, taxable income will usually not arise. However, if the consideration is higher, the difference may be taxable income. In any case, we recommend verifying the tax implications of such a step in the specific case with a tax adviser or attorney.
Practical steps
A change in circumstances does not have to mean the end of the road to the apartment or the loss of what the buyer has already paid. The transfer of rights and obligations under the agreement is a common solution that can satisfy all three parties involved. If you are considering it, we recommend the following steps:
- Check what your agreement to conclude a future purchase agreement says about a transfer. If the agreement does not contain the developer’s express consent to the transfer of the future buyer’s rights and obligations, this procedure is not possible without a separate agreement with the developer.
- Contact the developer and agree on the procedure, the conditions and the documents that will be required.
- Find a new buyer and agree with them on the consideration and the method of payment.
- Sign a tripartite agreement covering all the essential issues related to the transfer.
- Always check the tax implications of the transaction in advance.
What the new Civil Code will bring
The new Civil Code (Act No. 260/2026 Coll.), which takes effect on 1 July 2027, expressly regulates the transfer of a contract in Section 369. A contracting party will be able to transfer its rights and obligations under a contract to another person if the other contracting party agrees. Consent may also be given in advance, for example directly in the contract. The transfer will then take effect when the original buyer notifies the other party of it or when the new buyer proves it. The procedure that practice currently assembles from the assignment of a claim and the assumption of a debt will thus receive a clear statutory framework.
However, the new rules will generally apply only to contracts concluded on or after 1 July 2027. Agreements to conclude a future purchase agreement concluded earlier will continue to be governed by the current Civil Code, unless the parties agree in writing that the new rules will apply to their relationship (Section 1893(3) and (4) of Act No. 260/2026 Coll.).
Need advice?
At HALADA & PARTNERS s.r.o., we will be happy to help you with the procedure for transferring rights and obligations under a specific agreement to conclude a future purchase agreement, including the preparation of comprehensive documentation or the review of a draft submitted by another contracting party.
